Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned.

I’m Preet Bharara.

Joanne Freeman:

There’s an ongoing aspect of Americanness, which is that we’re not really good at following orders. We like to know why. We want to know why we’re being asked to do things. We demand on a certain level to understand why something is happening and why we’re being asked to do something. And the reason I remember that story, the officer’s name from Prussia was Baron von Steuben. I remember that because that feels so kind of ultimately American what he recognizes. Who are these crazy people who can’t take an order?

Preet Bharara:

Welcome to Stay Tuned. I’m Preet Bharara. Tomorrow the 250th anniversary of the country, we’re doing a two episode special series. This week I’m joined by Joanne Freeman. She’s an acclaimed historian of the Revolutionary era, professor at Yale University, a prolific author, and the host of several webcasts on YouTube. That’s coming up. Stay tuned.

Joanne Freeman, welcome back to the show.

Joanne Freeman:

It is my great pleasure to be back.

Preet Bharara:

So can I begin by saying it’s great to have you. It’s very timely for you to be here. And what’s crazy about this time and this year is that we’re celebrating the 250th birthday of the nation. And I can distinctly remember, which is the thing that makes me feel old and there are many such things. I remember the bicentennial in 1976. In 1976, I would’ve been seven and in second grade. And I remember we talked a lot about the Declaration of Independence. We talked about the Revolutionary War. We talked about the founders. So describe for folks who are too young to remember what we did for children and also for adults in terms of civic education during the bicentennial.

Joanne Freeman:

Well, it was everywhere.

Preet Bharara:

Yeah.

Joanne Freeman:

I mean, it was really everywhere. It was like The Reporter Dispatch, the little local newspaper we had in Yorktown Heights. I think every day it had a bicentennial moment in the back, the last page and then I cut them all out and they’re still sitting in a closet somewhere and there were bicentennial minutes on TV. I mean, as a matter of fact, Yale has a collection called the Bicentennial Schlock Collection. And it’s just a collection of every weird commercial and non-commercial thing that existed in 1976. I mean, it was inescapable.

Preet Bharara:

It was everywhere and a very good thing because it was about the history of the country. Now, were you one of the lucky few who were able to go to the White House when Ford was president that year and see the UFC champion bout?

Joanne Freeman:

I missed that.

Preet Bharara:

Did you go to the White House in 1976 and see that?

Joanne Freeman:

I missed it.

Preet Bharara:

I missed it. My parents wouldn’t let us go.

Joanne Freeman:

I missed it, sadly. Yeah.

Preet Bharara:

So, are we missing something this year?

Joanne Freeman:

I will say that the National Bicentennial Commission had a lot of fervor and upset and craziness and they didn’t necessarily come together in a coherent kind of way, but there was all kinds of stuff happening on a local level. And here’s one of the distinctive things that happened during the bicentennial, and it’s distinctive in part because opposite is happening now. During the bicentennial, there were all of these new stories added to the telling of the Revolutionary era. African-American history was added, women were added into the story, indigenous people were added into the story and suddenly it wasn’t just white guys, the American Revolution. The story was complicated in the way that it needs to be. And now here we are and those are the precise things that are often being stripped away by the folks in power.

Preet Bharara:

Going back to the issue of what we should be doing in schools, should there be more? And is the reason why we’re not doing more this very controversy? What kind of history should we be teaching? There’s a lot of criticism of the Trump administration. The word whitewashing has been used. We see the kinds of celebrations Donald Trump wants to have and some people think it’s elitist. The joke that you and I laughed at earlier, extreme fighting, UFC fighting at the White House. That’s something that a lot of people enjoy. Was it too much in 1976? Are we doing it just right now? If you were the head of whatever commission for 2026 and in a different universe you could have been, what would we be doing this year?

Joanne Freeman:

Well, one thing we would be doing this year would be not simply throwing up confetti and applauding the wonderfulness of everything. We would actually be embracing-

Preet Bharara:

Other than for the Knicks.

Joanne Freeman:

Okay, that’s true. The Knicks, lots of confetti.

Preet Bharara:

That’s one thing we did that was-

Joanne Freeman:

All of the confetti. Yeah.

Preet Bharara:

That’s one thing that we did. So, we had the Knicks.

Joanne Freeman:

That’s true.

Preet Bharara:

So no confetti.

Joanne Freeman:

Nope. No. Well, some confetti, okay. But not only confetti because historian speaking here, our story is not all sunshine and balloons and rainbows and fairytales. I mean, you can’t understand where we are without the full complexity of the past and this kind of anniversary year is a moment when we should be embracing that idea and actually thinking about where we’ve been as a way to think about where we might want to be.

Preet Bharara:

So that’s super interesting. I saw Obama, President Barack Obama, speaking on television today or yesterday, and I should say that we’re recording this on June 18th and he was trying to take sort of a middle position that on the one… I’m paraphrasing, that on the one hand to deny that there was a gap between the words of the Constitution or the words of the Declaration of Independence and what was actually happening in the world, to deny that doesn’t seem right, but then he said something very important, particularly on the progressive side. But on the other hand, to use those failures and to use those gaps as a reason to be not feeling celebratory or not to recognize the genius of the founders or the genius of our structure, separation of powers, rule of law, all sorts of other things, maybe we’ll get into many of them, is also not right. Does he have that correct?

Joanne Freeman:

I mean, I agree with that because I think that, or certainly the way I think about it is that the ideals and the ideas that came out of the Revolution and that founding moment, they matter even if people at the time weren’t living up to them. The ideas and the ideals matter and they matter in part because once they were there, once they were represented as part of what the United States is, then all kinds of marginalized people can point to them and say, “Well, that represents us too. You can’t say that that’s what the country is and deny that to us.” So I do think the ideas matter and I do think that the achievements of the founding era and beyond matter enormously, but I think you can understand that and grasp that and appreciate that and acknowledge that the ideas and ideals were over here and the reality was somewhere over here and that our history is trying in one way or another to figure out how the reality and the ideals do or don’t come together.

Preet Bharara:

What’s so interesting about, well, many things interesting about the declaration, which is a principle event, right? The principle landmark historical event that happened in 1776, which allows us to call this the 250th. We’re going to get to, in a moment, you’re going to teach us a little bit about why this year and not 1783 and not 1789, you gave me a primer on this before we started this formal conversation, but the line in the Declaration of Independence, if anyone knows any line, they know the beginning of this line, “We hold these truths to be self-evident.” And that’s not correct.

That’s just not the case. Self-evident is something that doesn’t take centuries of debate and schools of philosophers to have discussions and argument and re-argument and bloody war for the liberation of peoples and even democratic governments like our own based in part on enforced inequality and that’s fine. We moved on from that and we grew up from that, but it’s super interesting to me that they, and I’m not a historian, but you are, they didn’t have to use the phrase self-evident.

Joanne Freeman:

They were talking bigger than us when in the course of human events, they were talking about self-evident meaning in the principles of the universe, thinking like enlightenment thinkers.

Preet Bharara:

Right. It has been evident to us, but it’s evident to them.

Joanne Freeman:

It is a truth. And the history of the world proves it the way enlightenment thinkers are trying to find the broad patterns. That’s what they were thinking, that this is a fact, that all men are created equal. And again, where we started, they weren’t really believing that. They weren’t believing that of all white men. They weren’t believing them about all people. They didn’t. But the broader principle about equality, standing way back from the reality of where they lived, they did believe in that, but part of the Revolution was pronouncing to the world what they were claiming was kind of a starting point. The declaration in some ways was announcing to the world, “Here’s where we’re starting. Here’s what we’re trying to represent. We’re breaking away from the mother country and it is our duty.”

In the course of events, in the course of human events, this moment requires this kind of action. So yeah, to try to deny that they somehow or other are based a civilization, a moment based on inequality, of course they are, but the broader principle mattered.

Preet Bharara:

Some basic history.

Joanne Freeman:

Okay.

Preet Bharara:

1776.

Joanne Freeman:

Correct.

Preet Bharara:

The Declaration of Independence is signed.

Joanne Freeman:

Yes.

Preet Bharara:

As you schooled me before we began, then something happened in 1783. What happened in 1783?

Joanne Freeman:

In 1783, the Treaty of Paris was signed that ended the Revolution.

Preet Bharara:

The Revolutionary War.

Joanne Freeman:

Correct.

Preet Bharara:

Then in 1787, what happened?

Joanne Freeman:

Then in 1787, you have the Constitutional Convention after, between 1783 and 1787, you had really wacky, chaotic 1780s in which basically the Revolution ended and the colonies ,now states, which had come together because of the crisis of the Revolution, the Revolution ended and they all went back their separate ways and suddenly there was not a lot of unity. There was a lot of chaos between the states. So then ultimately you get a calling for the Constitutional Convention.

Preet Bharara:

And then so in my head for various reasons that I can explain, I think of the beginning of the nation as 1789. In March of 1789, our government sort of comes about.

Joanne Freeman:

Yes.

Preet Bharara:

That’s when George Washington begins to serve as the first President of the United States. That’s when the first laws are passed. That’s when the Judiciary Act is passed. That’s when you get all sorts of things that happen that usually you associate with nationhood in 1789. In 1776, were we or were we not actually independent?

Joanne Freeman:

Oh, we were independent. I mean, you can see that in the immediate reaction to the idea of independence. So yes, the Declaration of Independence says, “Now we’re independent.” But one of the first things that the now states do, so they were colonies and with independence, they become states. They all immediately began drafting new state governments because the colonial government that was in place, the structure, no longer applies. So now poof, they have to create new governments because they are independent and not every state comes up with the same idea of a government. They resemble each other. So absolutely, independence was declared and that was a thing and not just an idea.

Preet Bharara:

Well, I have a dumb civics questions because I don’t remember a lot of this. I’m so happy you’re here. Then why do we have to fight a war?

Joanne Freeman:

Because the British weren’t going to just say, “See you.”

Preet Bharara:

Okay.

Joanne Freeman:

“It’s been nice having you.”

Preet Bharara:

So was it, maybe this is all semantic and people are already yawning and rolling their eyes. Were we independent and the British attacked us so that our war was a defensive war or was it a war of liberation? In other words, both those things don’t seem to be consistent with each other. Either we were independent and we were attacked or we were not independent and we had to liberate ourselves and which one was the Revolutionary War?

Joanne Freeman:

We were a people in rebellion. We declared independence and essentially revolted against Great Britain. So we declared it, we put it in a document after a number of years, it took years to get to 1776, but it was one thing to declare that and the British didn’t just wish us well. We were in rebellion. I mean, that was literally a people in rebellion. They are rebels. And so the idea of the British was, “Well, we have to quash this rebellion. Who the hell do they think they are? We’re going to quash it.” And there are a bunch of hoo-ha hicks from out in the country. This will take us a nanosecond-

Preet Bharara:

God bless the hicks.

Joanne Freeman:

… and we’ll be done. Yeah.

Preet Bharara:

When did the, as they say, the Community of Nations recognize the United States as a country?

Joanne Freeman:

Oh, I mean, the treaty made it formal. As far as the world-

Preet Bharara:

That was 1783.

Joanne Freeman:

That was ’83, made it formal. Although it’s not as though the rest of the world was like, “Well, that’s that.” Because again, who the heck are these little upstarts?

Preet Bharara:

This is maybe an odd way to bring it into modern times. So if it’s silly, ignore it altogether. We have happened to have in very recent times that you and I live in, superpowers who have thought, “Yeah, we’re just going to go roll over this other country.” And I’m not saying these things are similar at all and these are not wars of liberation in Ukraine and in Iran, but superpowers don’t always win their battles. And am I correct, this much history I think I’m correct about if there were ever a superpower, it was Great Britain in 1776, correct?

Joanne Freeman:

Yeah, absolutely. They were a great empire of the world. And the idea that these colonists could fight a war against the British, the British army, the British… I mean, their navy was the greatest in the world, but their army and we didn’t have really, we created the Continental Army, but we didn’t necessarily have uniforms, not everybody-

Preet Bharara:

Why’d you say that with a voice?

Joanne Freeman:

Because it was like a, “Hey, we need an army now. Let’s make one.” With a voice. I like that. Yeah. It was like, “Okay, we need an army. Now we have an army. Okay, let’s go.” And it starts out mostly in New England, which is where the war begins, but these are not real soldiers in the sense that British soldiers are trained and that’s their job and that’s what they do for a living. These are colonists who take up their arms and head out to defend their own area, their own, not yet a nation, but their rights as they saw fit.

I mean, there’s a great story about Prussian officer who’s brought to the United States, not yet the United States, to help train Americans into becoming soldiers since they weren’t really soldiers. And he had been in Europe, in Prussia, he had been working with European troops. He knew what real soldiers were and comes to the colonies and he writes to someone and says, “This is crazy.” This is a really bad paraphrase of what he says. These Americans, you can’t give them orders. If you tell them they have to do something, they ask you why.

Preet Bharara:

Yeah.

Joanne Freeman:

You have to explain why. They’re not behaving like an army. They’re behaving like colonists who have a sense of what their rights are and they want to understand why they’re being asked to do things. So it’s kind of all of a piece in that moment.

Preet Bharara:

Well, you just said is sort of remarkable. Would you say the same is true of the majority of the American citizenry right now? Do they want to know why we do things?

Joanne Freeman:

Okay. So I’ll give you a two-part answer. Part one being the responsible historian is, well, you can’t make these broad generalizations, but I do think that there’s an ongoing sort of aspect of Americanness, which is that we’re not really good at following orders. We like to know why. We want to know why we’re being asked to do things. We demand on a certain level to understand at a given moment why something is happening and why we’re being asked to do something. I find… the reason I remember that story, the officer’s name from Prussia was Baron von Steuben. I remember that because that feels so kind of ultimately American what he recognizes. Who are these crazy people who can’t take an order?

Preet Bharara:

Let me ask you this semi-political philosophy question. Does that trait, and maybe it depends on the level of the trait and how it’s exercised of inquisitiveness and wanting to have explanations and reasons, does that make democracy more stable or less?

Joanne Freeman:

Can I say both?

Preet Bharara:

Sure. Well, because I think that’s my view.

Joanne Freeman:

Yeah, I think both. I think that democracy fundamentally is grounded on the people, we the people, making choices. That is the essence of it. But the risk of democracy and this idea, this recognition goes all the way back to the founding, those choices can be pretty stupid, right? The people-

Preet Bharara:

Well, before the founding, it goes back to the Greeks probably.

Joanne Freeman:

It goes all the way back, but talking about the United States, the idea, which is why in the founding era and the early Republic, they think a lot about education. They think a lot about the people need to be educated and need to understand their system of government because they’re going to have to be responsible and recognize threats to the Republic because if they make a stupid choice, it could all go down. And they talk all the time, particularly in the 1790s once the government starts, about demagogues. That’s the ultimate threat to a Democratic Republic is someone who appeals and panders to the people and gets them to like him or her and then once they have power, they do whatever they want with it.

That as well comes from Ancient Greece and Ancient Rome, but that was right in front of the faces of people in this time period. If you go into like there’s an online database, Founders Online from the National Archives. If you go into Founders Online and search for demagogue, you’re going to find a lot of discussion of the threat of what a demagogue can do to a Democratic Republic.

Preet Bharara:

People like to use the phrase and it’s very soaring and inspirational, but the way that we often distinguish the United States of America from other nations is not necessarily our prosperity, or the thing I’ll mention people say is what leads to our prosperity. And there are various formulations of it, and I’m going to give you three of them. All of which I’ve heard recently. America is an idea. America is an argument. America is an experiment. Which of those do you pick? And if it’s all of them, explain what those mean when people use them.

Joanne Freeman:

Well, for sure it was seen as an experiment because the rest of the world was monarchies and these crazy people in the new United States, we’re going to do something different. We’re going to create a republic. It’s going to be grounded on public opinion in a way that no monarchy is. Will it work? We don’t know. This is part of what I love in studying the time period is they all the time are trying to decide if it’s going to work and are anxious and they think one stupid mistake is going to take it all down and it’s the improv of it that I find really fascinating. So definitely they conceived of it as an experiment. They also understood, so this goes along with what you said. The United States was not a kind of blood and soil country. It was grounded on ideas and debate and compromise and not on warfare and coincidence.

That’s the first paragraph of the first Federalist essay by Alexander Hamilton. All my courses, I read this out loud because what it essentially says is, and it gives you a sense of what they thought of as its significance of the moment. Hamilton says essentially, and this will be a paraphrase, we’re deciding for all time. If you can create a government based on debate and compromise or whether nations are forever to be created based on accident and force and a wrong part, if we act incorrectly, a wrong resolution of the part we shall act may deserve to be considered as the general misfortune of mankind. We are deciding for all time if you can do this. Essentially, if you can create this kind of experimental government grounded on ideas about how government should work and not grounded on the fact that we’re all a sort of united ethnicity or the end of one war and another war and the winner takes all, it’s grounded on an idea and it’s an experimental government grounded on the fact that a government based on debate and compromise can actually work.

Preet Bharara:

But then both of those things cause and foment, that’s a pejorative word, but I’ll use it anyway, foment the third thing that I mentioned, which is argument and democracies can only tolerate so much argument. I mean, one of the things that the founders did not anticipate and would have been horrified about and we take for granted and we talk about every day and that’s parties and party affiliation. What do you think the founders would say? I’ve heard other people talk about this, the proliferation and the rise of parties, how does that jive with our democracy?

Joanne Freeman:

Well, they could not conceive of what we take to be the norm, which is that there are two national parties. The idea that the whole nation would join behind-

Preet Bharara:

Fall into one or the other?

Joanne Freeman:

Yeah. It was bonkers, was something that they never imagined. They imagined faction, they imagined parties, all kinds of factions bouncing against each other, that they assume, but the idea of two national parties was not something that they thought could possibly happen. And when in the Revolution, what becomes known as the Revolution of 1800, the presidential election of 1800, it seemed as though the nation divided into two. Many people responded to that really fraught election by saying, “We can’t elect presidents that way anymore because look what it did. It seemed to divide the people into two parties and that’s no good.” So they understood and expected they weren’t naive. They thought that there would be factions and conflict and clashing, but the idea of two established networked professionalized parties, that they didn’t foresee.

Preet Bharara:

But what’s interesting to me about that is we talk a lot about how polarized we are, we’re polarized, we’re polarized, we’re polarized. My question to you is the very fact that most of the… And they’re independents, I know, but the very fact that 330 million people and lesser amounts along the way, can basically organize themselves into two big political parties, does the fact of that undermine the allegation and the observation that they were so polarized?

Joanne Freeman:

No, because-

Preet Bharara:

Does that make sense?

Joanne Freeman:

Yeah, no, I understand what you’re saying. There’s a-

Preet Bharara:

I mean, in other countries, you’ve got like 15 parties and the ones all the way on the left, all the way on the right, they’re really far apart. And here what people get most annoyed about is when somebody says that Hillary Clinton is the same as a Republican. So what’s polarizing about the parties?

Joanne Freeman:

Well, it is very useful to people within the party to be cohered and organized in the way that a party is. I mean, you can see, organized parties don’t exist in the first 10, 15 years of the government. When Andrew Jackson comes along later, since the guy who says, “You know, if we network and organize, if we make it so that nationally there’s a network, there are people responsible to other people and think how handy that will be in winning elections. Think how handy that will be in maintaining power.” Party politics, yes, is part of democracy, but it’s also really handy for people who want to get and maintain power. There’s a practical component of it, which is why it ends up being on the one hand, a useful tool and also a useful weapon.

Preet Bharara:

I’ll be right back with Joanne Freeman after this.

I guess all I’m saying is I hear the polarization language and I feel it and people feel very strongly about being MAGA or establishment Republican or Democrat and then you go down a list of questions issues and there are many, many questions on which in America, I think more so than many, many other countries, absolute consensus, absolute consensus on a number of things. And then maybe this is the point you were getting at. There’s sort of a manufactured polarization and maybe parties are to blame for that because that’s how you get elected and you get into power.

I want to talk about the frailty of democracy. So that makes a lot of sense to me in 1776 and 1789 also given the track record up until that point. Now there have been periods of ebb and periods of flow with democracies around the country. There are organizations who track them, right? Are they receding? Are they growing? We don’t have as many as we would like. We have a lot of democracies in the world and we have now been around for, checks notes, 250… This is an easy one. I don’t have to do any math at all. 250, 250 years. And we talk about the fragility of democracy 250 years on with traditions and structures and institutions. We are much closer to believing and to living in a society where these truths are self-evident. When people talk about the fragility of democracy, are they overstating it compared, and is this a moment to think about, whether we’re either overstating it or boy, the nature of that kind of government is always going to be significantly fragile.

Joanne Freeman:

Democracies are fragile. They are. And we have ignored that fact and taken democracy for granted. Certainly throughout my lifetime when I probably, like most Americans, took it for granted, democracy works and we’re a democracy and everything’s good and American exceptionalism. Democracy is fragile. They knew that from the beginning. There were many people who are not particularly keen on things being extremely democratic. It’s fragile because it’s grounded on us. It’s fragile because, public opinion, we the people ultimately should have and do have the power, which means we can be pushed or pulled in bad directions and then bad things can happen. So yeah, democracies are fragile and it doesn’t feel like that because we see our country and don’t think about the rest of the world in this way. We’re a really, really young country.

Preet Bharara:

Right.

Joanne Freeman:

So on the one hand, we’re all saying-

Preet Bharara:

We’re old democracy, but we are an old democracy.

Joanne Freeman:

We have lasted a good amount of time for democracy [inaudible 00:31:24].

Preet Bharara:

Now when you talk about democracy being fragile, I just want to make sure that we’re clear about this. And I think what you’re saying is, and I think this is my view, that’s not a flaw. That’s the design.

Joanne Freeman:

Yes.

Preet Bharara:

Correct?

Joanne Freeman:

That is correct. Because-

Preet Bharara:

So it’s not solvable.

Joanne Freeman:

No, it is not solvable. It is the, to me, a glory of democracy is that it is grounded on us and we can shape it. And we, I think about this a lot, surprise, these days because Americans have forgotten. They have forgotten that public opinion governs in a Democratic republic. They have forgotten that public opinion rules. They have forgotten the power that we, the people have when we come together. And that’s a positive thing. It can lead to positive change. It means even in this moment of hyper contingency where we really don’t know what the hell’s going to happen next, bad things can happen depending on the choices we make. Good things can happen depending on the choices we make. So it makes it fragile.

It means that we can move things in a good direction as a people. It means that we should be able to come together and join on some… And you said it a moment ago that when you talk to people, there’s a lot of consensus underneath the ways in which people are being pulled apart. There is a lot of consensus. Well, I think about public opinion all the time because I honestly think Americans have forgotten the power of we, the power of we, the people, and that when we, the people decide something, come together and decide to do something, there’s a power to that.

Preet Bharara:

Well, they’re confused by it. At least I’m confused by it. I’m part of the we. And what they don’t understand is, on issue after issue, and you tell me if this is a function of the design that was forged 250 years ago, either of necessity or it’s a design flaw when… I don’t know what the numbers are exactly, but I’ll pick a sort of a concrete policy issue and we don’t govern by plebiscite, you can’t fix it this way. Something like 90% of people believe in universal background checks for firearms. I believe that that number is large enough to include most Democrats and most Republicans and most independents. And guess what, Professor, what we don’t have in this country. We don’t have that. How can that be?

Joanne Freeman:

Oh, well, then you get capitalism and corporations and all of the other ways in which-

Preet Bharara:

Yes. Right. Well, but the reason I mention it is a little bit that’s a counter to what I totally agree with what you said. The power of me is countermanded by the power of them. Who’s the them?

Joanne Freeman:

Well, there are a lot of them.

Preet Bharara:

And is it the power of us or is it the power of we? I think it’s the power of we because we’re using it-

Joanne Freeman:

We.

Preet Bharara:

… as a term from the Constitution.

Joanne Freeman:

We. Well, it is from the Constitution, but also because-

Preet Bharara:

I take care about my grammar because-

Joanne Freeman:

And I appreciate that. No, but it is we because we feels inclusive. We feels embracive in a way. Us to me is more informal. It’s just people who happen to be together wherein us. We has a spirit behind it and it’s grammatically correct and comes from the Constitution. But I think there’s a meaning in that that means that.

Preet Bharara:

Remind people what the Federalist Papers were and why they were extraordinary. And because people are going to find this horrifically geeky. I’ve been rereading a few of them, which ones they should read as we get to July 4th.

Joanne Freeman:

Oh, boy. Okay. So the Federalists, and actually they aren’t officially called the Federalist Papers. That was a title created in the 1960s. They’re essays.

Preet Bharara:

That I didn’t know. I just learned that today.

Joanne Freeman:

Yeah. They’re the Federalist essays and they were a project by Alexander Hamilton. He began them. He invited John Jay and James Madison to join him. And the idea was they were going to write a series of essays defending what they hoped would become the new Constitution. It was for ratification. So every state had a ratification debate, a convention in each state and the Federalist essays were an attempt to explain to people why the new constitution was a good thing and to explain away people’s fears. Now, one important thing about this, which I think particularly courts tend to forget, is that the Federalist essays were not intended to be objective. They were a commercial advertisement for the constitution.

Preet Bharara:

For one side, because there was this other group, I believe they were very cleverly named the Anti-Federalists.

Joanne Freeman:

Anti-Federalists.

Preet Bharara:

Yes, the Anti-Federalists.

Joanne Freeman:

Those clever people. Yes. And so yeah, it was the Federalists saying, “This is a great kind of government. Please support it.” And explaining away things that seemed threatening. They were a kind of advertisement for the Constitution. The idea was they were published in newspapers and people could read them and see what they thought about the Constitution and maybe the ideas could be used in ratification debates throughout the different states. So they were really important because they were essentially a series of newspaper essays so that the nation and largely at that point was a largely elite white male readership could debate what this new Constitution was or might be.

Preet Bharara:

Yeah. But what’s extraordinary about them is they’re not that long, right?

Joanne Freeman:

It’s embarrassing.

Preet Bharara:

Even though they are works of advocacy and even though they don’t necessarily make every argument, they are a thoughtful, reasoned, principled, whether you call them essays or papers that were serious and serious minded in favor of a political position and a political structure. And maybe you could say like, “Well, it’s the founding.” So for the initial document… And then you think today, in no circumstance would you have such a rendering of opinions and ideas, an articulation of public reason. There’s the famous philosopher John Rawls talks about public reason, which seems to have fallen by the wayside. And what they could have done and what other people have done, particularly in more modern times, is you develop some stories and some anecdotes and you have a stump speech and you have some boilerplate sloganeering and if your society at that point has cars, you put them on a bumper sticker and you don’t pay the public the respect of thoughtful argument and that’s what the Federalist Papers were. When did we lose that?

Joanne Freeman:

Well, before we get to when we lost that, I want to highlight that because that’s a really important point, is that they didn’t have to have every state ratify the New Constitution. They took the people seriously and they took the idea seriously that the American people in one form or another needed to buy into this for it to pass. Same thing, most people don’t know this about the Declaration of Independence is that there were individual towns, particularly I think in Massachusetts, in Maryland. The Massachusetts government asked towns throughout Massachusetts to get together and debate independence, which they did. And they drew up their own Declarations of Independence and sent them to the Continental Congress saying, “We talked about this and we actually liked the idea of independence.”

From the beginning, the idea was whatever was going on, and this is what I mean when I say grounded on the people, that wasn’t just an idea. They were literally saying, “Okay, people, what do you think about independence? Okay, people, what do you think about this Constitution?” They created processes so that people would be able to sign on or not sign on to these major developments in nationhood. Rhode Island did not initially say yes to the Constitution. When the government went underway, began, Rhode Island was not officially part of the union yet. And when George Washington made an early tour, kind of show his face in all of the new states and the new nation, he skipped Rhode Island because they weren’t part of the United States yet. So they took this seriously, the idea that Americans needed to in some organized fashion sign on to what was happening.

Preet Bharara:

And they did it in a way that was thoughtful, respectful, dignified, and respected the intelligence of the voters. I’ll give you an example of something that I’m reminded of that you have to do in law practice, right? Not to use law practice as a model, but the older I get and the more I practice law, the more I think that it might be, as odious as that might sound to lots of non-lawyers and lay people, but generally speaking, people say, “Here’s what we should do for X, Y, and Z.” And they don’t say, “Well, here are the objections to my plan,” and fairly lay out the… “So I want to do X, Y, Z, or I want to go into Iran,” or whatever the case may be. They say, “Here’s what I’m going to do.” And they ignore because… I don’t know if it’s a matter of lack of thoughtfulness or sharp practice or they don’t really understand, but they don’t say what the Federalist Papers do.

And other folks in time have done the Lincoln-Douglas debates were like this, but that’s also a century and a half ago. “The objections to these are X, Y, and Z. My response to X is this. My response to Y is this. My response to Z is this.” So you look at a document and maybe it [inaudible 00:42:12] certain fundamental objections, but by and large, you read the document and you get the sense that they’re not only advocating a particular position, but they are fairly presenting, describing, defining the major objections and then overcoming those objections. That seems like a simple thing in the public square, but it is really, really rare. And that’s one thing that I think is important to celebrate too.

Joanne Freeman:

I agree with you. And on a purely practical level, if you’re creating and launching a government and you haven’t done that, you haven’t investigated and interrogated and explained things, you’re starting out at a disadvantage. I mean, there has to be the starting point of a government, which is a kind of weird thing to think about, but if you’re starting a nation and you’re starting a government, there has to be a starting point at which the people basically say, “Okay, I’m going to sign on. I’m kind of convinced. Let’s see what happens.” In any kind of democratic country, there has to be a starting point where in one way or another, people at least willingly step up to that moment and say, “Let’s give this a go.” And I think that that is an admirable and a distinctive thing about the founding of the American nation is that they sincerely wanted Americans to understand what was being created and to essentially agree with the launching of it.

Preet Bharara:

The fundamental weakness of democracy or a fundamental weakness of democracy, and you’ve talked about this and written about this and in my own niche, I think I have a parallel argument that the best laws in the world, the best, most ably drafted constitution in the world, institutions, even if they have a long track record, don’t do the trick. It takes the people who are enforcing the law, interpreting the law, applying the law, running those institutions and it’s very difficult to legislate their personalities, their psychologies, their intellect, their mode of speaking that requires civic virtue and another word that you use is honor. And I’m guessing for people who are outside of history and the political sciences and who are physicists and mathematicians, honor is a pretty weak glue. How do we make do with honor, Joanne, and what do you mean by it?

Joanne Freeman:

Well, and the way that I’ve written about honor is not quite the way that you’re talking about it. So I’ve written about honor a lot as what gentlemen and politicians in their early years of the government of the nation believed was the fundamental aspect of who they were. They were men of honor, meaning they could be trusted, meaning that their reputations were trustworthy.

Preet Bharara:

They would shoot you in a dual.

Joanne Freeman:

If you say, “I’m dishonorable,” I will shoot you in a dual. So it was practical. It wasn’t like… And when I say that honor mattered, I’m actually not saying these were all wonderfully honorable men. I’m saying their honor mattered because they needed it to be gentlemen and trusted and to have political power. So that’s what I mean by honor. But related to that and along the lines I think of what you’re asking is the idea of good faith, the idea of, and it’s what I think in essence a democracy is grounded on, that people come together. It’s certainly, ideally speaking, if you think about what’s going on, for example, in Congress, in any Congress, but in a legislature, the idea is people come together and operate on a certain level of good faith that they are going to follow the rules. They’re going to have an equal playing field. They’re going to come together, debate, compromise, fight, argue. In the case of the guys I write about in the 19th century, hit each other over the head.

But in the end, they will be abiding by the system that they have put in place and in good faith allowing for these contests to happen and abiding by the result.

Preet Bharara:

So as we sit here on the eve of the whatever it’s called-

Joanne Freeman:

Semiquincentennial.

Preet Bharara:

Is it the semi-quint… What is it?

Joanne Freeman:

Semiquincentennial.

Preet Bharara:

Why can’t we call it call it the quarter millennium?

Joanne Freeman:

You can call it that if you want, Preet.

Preet Bharara:

We’ll call it the quarter millennium.

Joanne Freeman:

That’d be good.

Preet Bharara:

This is a time when parents and friends and teachers, we’re a couple of weeks away from that seminal date, July 4th, 2026. And some folks might want to at the dinner table or on the weekend talk about the founding of the country, talk about the declaration. Obviously, some families have younger children, some have older children, and schools are different and they have different priorities and you’ve been an historian for a long time, a teacher. Can you name two or three things that you could recommend that any family in the country or any classroom in the country might spend some time thinking about, debating, reading?

Joanne Freeman:

I’m going to be hokey.

Preet Bharara:

Please, if ever there was an episode on which to be hokey, it’s this one.

Joanne Freeman:

And I’ve been saying this a lot in recent months. Actually read the Declaration of Independence. And I say that for several reasons. Number one, we focus on where we started in our discussion today, Preet, with when in the course of human events, all men are created equally, the whole preamble, with all of these broad statements about the significance of what we’re doing and that matters and we need to read that. But here’s the other thing. The actual body of the Declaration was what really mattered in the moment. The body of the Declaration, the things that the king had done that were sins against the colonies, all of the grievances one after another, he has done this, he has done that. Read the he hases. Read the whole Declaration.

Preet Bharara:

The he hases.

Joanne Freeman:

Read the he hases. Read all the he hases because what they do is they describe a leader who has done any number of things that has violated the fundamental rights of British subjects. So this is an important thing. The colonists saw themselves as British subjects whose fundamental British rights were being violated. So what does the king do that they’re so angry about? Well, he has ignored their legislatures. He has overruled their courts. Read the he hases because it is remarkably similar to a lot of what’s going on right now. And after all of the he hases, what they conclude is that a leader who does these things is a tyrant and not fit to govern a free people. Read the whole document because it lays out pretty clearly what kind of government the people in this moment wanted to have, what they considered their fundamental rights to be and rights meaning we have a right to a legislature that actually represents us. We have a right to essentially the rule of law, courts, that operate the way that they’re supposed to act.

We have all kinds of rights. Ultimately, many of them get written up into the Bill of Rights, but read the whole Declaration to understand in that moment they weren’t only broadcasting what they wanted the government to represent. They were talking about what they felt they had the right to have just as people in a fair government, in a fair, a just country. And in this moment, the fact that the semiquincentennial is happening in the midst of the mess that we’re in right now, the positive side of that is this is the exact moment when we need to be thinking about who we are and what we sincerely deserve as the American people, where we’ve been and where we can go. And this is not a moment where we can sit back and assume it’s all going to be okay because it very well may not be. And the declaration is a reminder of people coming together and saying, “Here are all of the ways in which things are not right.” We are coming together to say, “Together we will create something better.”

Preet Bharara:

So when I was in college, we would talk particularly in international relations classes, this idea of the man of history, it was not particularly politically correct with respect to men and women, the Great Man Theory as opposed to some folks when they described why events unfolded in a particular way, why this war happened, why this war ended, why the Industrial Revolution came in this particular way, in this particular geography. And there’s always the question of fortuity and luck and putting aside the obvious gaps that we’ve discussed earlier and that President Obama mentioned between the ideals of not just the Declaration of Independence, but the stated visions and principles of the founders and reality. But boy, was there an all-star team, tell me if I’m wrong, an all-star team of thinkers and debaters and articulators of government and its structure.

And when you think about it, on the federal side, we talked about them. And by the way, most of them were very young, very, very young. I think all of them, except Ben Franklin, who was I think always 940, were younger than I am now. So you had, just to name a couple, you had Hamilton and Madison, right? Jay a little bit on the Federalist Papers. These were enormous people of stature and intellect, right? And the guy against them, not a slouch, Thomas Jefferson, right? Then when you had to decide who became the first President, we got a guy, oh yeah, George Washington, also no slouch. Some of those people ended up serving in the Congress in the early years. You have extraordinary towering figures who were in the Supreme Court at the beginning. Was that fortuity or had all this come about in 1721 or 1827, would we have had a collection of people like this? Am I over-lionizing them or not?

Joanne Freeman:

Yes and no. On the one hand, one of the things that they had going for them and we had going for us is that whole generation of elite white men were educated reading things like Plutarch’s Lives of the Great Greeks and Romans, which taught you the way to be a great man was to be a statesman, to found a nation. And a lot of them said in their writings early on in the Revolutionary period, John Adams does this, look at where we are. John Adams at one point says, “No, I was going to be a school teacher and essentially I’m a founder.” These were people who understood the moment and so they were primed to take advantage of it. But that said, going back to John Adams, John Adams in his post-presidential old age years, founder folk who lived to be old, particularly Thomas Jefferson and John Adams, who died July 4th, 1826 at the time people said, “Providential.”

But John Adams kept getting all of these letters from strangers saying, “Tell us about the founding. Tell us about the creation of the Declaration of Independence. Tell us the story.” Total strangers. And he answered and he said the same thing over and over and over again. “We didn’t know what we were doing. We had no idea what we were doing. We made mistakes.”

Preet Bharara:

That’s not true. That’s not true.

Joanne Freeman:

Not true. Let Adams finish. “We made mistakes. We were figuring it out as we went along. We didn’t know what we were doing.” He says it again and again. He says, “I watched people sign the Declaration of Independence and I saw a lot of people whose faces were really not happy about signing that document.” And he says, in essence, here’s why this is an important point. If you believe that the founding generation was like a cast of superheroes better than anything that comes after that point, it is all downhill from there. And that was not their intent and that was not what they believed.

Adams said, “Look, you are going to have to go forward and wrestle with the government and do what you can do to make it work the way you want it to work. And every generation will have to do that and you could do it maybe better than us. I don’t know, but it didn’t reach a peak with us.” And I think that’s hugely important. I think we forget that-

Preet Bharara:

Well, except-

Joanne Freeman:

… but I think that’s hugely important.

Preet Bharara:

Well, if I can gently push back.

Joanne Freeman:

Push back, even not gently.

Preet Bharara:

Their views of humility are admirable, but I’ll say from where I sit in the 2.5 centuries since we have not exceeded them and maybe it’s the case that there are structures that don’t allow it and maybe it’s the case… I mean, I’m sure all of these things are the case. There are people who still study and are thoughtful. There’s no founding of a nation that has to happen and maybe that’s why there’s a certain laziness and a certain lack of non-participation among men and women and white people and non-white people because we kind of have a country that’s kind of going.

You don’t need to have somebody who knows how to make a car if you have a car, but what you… And this is a terrible analogy that just came into my head, but you do need people who know how to maintain the car and I’ve been thinking about this and maybe this is overly slick and clever, but if you believe that the country, that the United States of America is an idea or an argument or some form of an idea or an argument, then what sustains it more than anything else is not your military, is not the preparedness for bloodshed, but is the collective ongoing thoughtfulness of the citizens and the leaders more so than in any other country because we were founded on an idea. I got to tell you, I don’t love the current leadership of the country on either side as measured against some people from the past.

Joanne Freeman:

But here’s the thing that they had that leadership after that point didn’t necessarily have. They thought about posterity constantly because they were creating something and it never left their mind that whatever the heck they were doing, the legacy mattered because it might not last. They thought about posterity constantly, which means… you just used the word ongoing. That was fundamental to everything that they did was it had to be ongoing. Folks in power now do not think about posterity. They think about five months from now and the midterm.

Preet Bharara:

In a particular way. And Washington, by the way, I should be balanced. That guy, he put his name on an airport, he put his name on a bridge, he put his name on a monument, he put his name on all these elementary schools.

Joanne Freeman:

What an ego on that guy.

Preet Bharara:

That guy. And I don’t know why we make so much fun of Trump, but Washington was out of control.

Joanne Freeman:

Oh, but despite the fact that I love that, I also have to say, because it’s kind of important for now, they talked a lot about the fact that you should not have Washington’s name on anything, not on money, not on coins, not on… He was not a king and that’s what kings do. So they actually talked about this, that you do not put Washington’s name on things because that would suggest he was a monarch. And if there was one thing that the president was not supposed to be, that was a king.

Preet Bharara:

What are you going to be doing on July 4th?

Joanne Freeman:

Other than talking to a lot of people, I’m not entirely sure. I will say that it gets back to hokey. I pretty much all the time now think about my feelings about this country and my fears for this country. I would be thinking about that anyway this year. But in this particular moment, I think about it a lot and I think that day I might sit down and do some writing on that because that’s a day-

Preet Bharara:

What are you going to write?

Joanne Freeman:

Don’t know yet. I will be inspired by the moment and write something about I think where the country is and what it means to me. That might not be such a bad thing for other people to think about doing too.

Preet Bharara:

Were there fireworks on the signing of the Declaration of Independence?

Joanne Freeman:

Not that day, but there were fireworks. There’s a great John Adams letter and he says in the future, he’s talking about July 2nd, not the 4th, but he says, “In the future there will be fireworks and parades and Knicks.” Yeah, he sees it all coming all the way back in the moment when it’s happening.

Preet Bharara:

Can you tell folks who I’m sure are very interested in hearing from you more and reading more about what you have to write where they can find those things?

Joanne Freeman:

I don’t know if you guys know this, but I’m doing a lot of live-streaming these days.

Preet Bharara:

Great. We should do some of that together.

Joanne Freeman:

I would love to. But for those who might be interested, every Friday morning I do History Matters. We’ve been doing it for six years in which I talk about what history could tell us about the present. Most nights during the week, I am now doing something called A Few Thoughts for Those Who Can’t Sleep since I often can’t, sometime between 10 and 10:30 at night. There are like 1,200, 1,300 people who routinely show up and I talk about what this moment is leading me to think. It’s a community in both cases, a real community of people who’s gathered.

Preet Bharara:

That’s wonderful.

Joanne Freeman:

Then every Saturday morning at 10:30, Heather Cox Richardson and I have a conversation about history and politics. So all of that is on my YouTube channel and I’m doing it all the time like a crazy person because I feel like, along the lines of what we’ve just done here, Preet, that the public needs to be thinking about these things. I want people to know that that’s there.

Preet Bharara:

Joanne Freeman, thank you so much. Thank you for spending time providing your insight and also for being a patriotic American.

Joanne Freeman:

Oh, thank you, Preet. The same goes right back at you.

Preet Bharara:

My conversation with Joanne Freeman continues for members of the insider community. In the exclusive bonus content, Joanne and I discuss Washington’s remarkable and prescient decision to relinquish power.

Joanne Freeman:

He became the most trusted man in America because he had all of that power at the end of the Revolution and he surrendered it. So, that mattered.

Preet Bharara:

For a limited time, we’re offering 25% off the insider membership in honor of America’s 250th anniversary. To claim the discount and become a member, visit staytuned.substack.com/250. Again, that’s staytuned.substack.com/250. The links are in the show notes. After the break, I’ll answer your questions about whether states can require ICE agents to identify themselves and the recent court ruling that removed Trump’s name from the Kennedy Center.

Now let’s get to your questions. This question comes in an email from Nicholas. “The Ninth Circuit Court of Appeals recently blocked California from enforcing a law that would’ve required ICE and border patrol officers to show identification and limit their ability to wear masks during enforcement actions. The court said the law likely violated the Constitution’s supremacy clause. Given that one cannot even tell if somebody is a federal agent, if they cannot be identified, do you think there can be any way around the supremacy clause?”

Nicholas, that’s a very interesting question and the supremacy clause is not something you can very easily get around. The laws you’re referring to are California’s No Vigilantes Act, which requires certain federal officers to display identification and also the related No Secret Police Act, which restricts the use of masks during enforcement actions. The laws, as you might’ve guessed, are a direct response to the increased activity by ICE and Border Patrol. In particular, reports that some agents were conducting enforcement actions without uniforms or visible identification. Now, Section 10 of the No Vigilantes Act requires non-uniformed federal law enforcement officers with limited exceptions to visibly display identification while performing their duties in California. It also allows the state to impose penalties on officers who don’t comply. Now, anytime a state tries to regulate the federal government, there is an immediate constitutional issue because of that pesky clause that you mentioned in your question.

Supremacy clause can be found in Article six, Section two of the Constitution, which says that federal law is “the supreme law of the land.” Little bit hard to get around that. Now, over time, the Supreme Court has interpreted that clause to mean that states generally cannot directly regulate federal operations and that of course is the core issue here. Soon after the No Vigilantes Act was passed, the federal government unsurprisingly sued California, arguing that the law was unconstitutional. As part of that case, it asked for a preliminary injunction to block enforcement. So the lower court, the district court initially denied that request. It found that requiring officers to identify themselves likely would not interfere with federal law enforcement operations, but there’s always an appellate court and in this case, it’s the Ninth Circuit and they saw things differently. On appeal, the court granted an injunction finding that the government would be likely to succeed on the merits.

The court said the No Vigilantes Act appears to actually violate the supremacy clause because it directly regulates how federal officers carry out their duties. That’s not the absolute final word because the appeal is still pending, but it does suggest where the court is likely going. Now to your question, is there any way around the supremacy clause? I guess in some limited circumstances, yes. Courts have permitted in certain circumstances, but Congress to authorize state regulation in some measure of federal activity.

A good example is the McDade Amendment, which I spoke about on a recent episode. That’s the law that requires federal prosecutors, federal agents, to follow state ethics rules. Also, states may be able to regulate federal officers when those officers act outside their lawful authority or do something not necessary to carrying out federal duties. There are a few other small, narrow exceptions, but none of them seem to be a clean fit here. The Ninth Circuit’s reasoning is pretty straightforward. This law attempts to directly control how federal officers do their jobs and whether you like it or not, it’s not likely to prevail, and Section 10 of the No Vigilantes Act is likely to be struck down.

This question comes as a post on X from Jill who asks, “What is the origin of the word gerrymander? And more importantly, why is it allowed?” Well, the first question is a lot easier in some ways than the second question, Jill. With the 250th anniversary of our country coming up, like a lot of you, I’ve been thinking about the founding and our founding documents. And the United States Constitution, along with the Declaration of Independence and some other documents, as I discussed with Joanne Freeman, is an extraordinary document. The framers got many things right, but they also had some blind spots. One was that they didn’t truly and fully anticipate the rise of a two-party political system or the influence of political parties would come to wield. Because of that, the Constitution does not lay out detailed rules for how congressional districts should be drawn. Instead, it leaves that responsibility largely to the states.

Almost immediately after the Constitution was ratified, national politics began to organize around competing parties. At first, the two parties were the fFderalists and the Democratic Republicans and one of those Democratic Republicans was a Massachusetts politician and guess what his name was? Elbridge Gerry. In 1812, Gerry was serving as governor of Massachusetts and he signed a redistricting bill that redrew state legislative districts in a highly partisan way to benefit his party. What else is new? According to a widely told story, after the bill was signed, a group of Massachusetts Federalists gathered at a dinner party and began complaining about one particularly long, narrow and winding district. A political cartoonist named Elkanah Tisdale was there. At the table, he sketched the district as a strange contorted creature with claws and a long snake-like neck. Some attendees remarked that it resembled a salamander, but someone else quipped, “No, it’s a gerrymander.”

Get it? Combination of salamander and Gerry. Tisdale’s cartoon titled The Gerrymander was published in the Boston Gazette in March 1812 and the new port-manteau quickly entered the political vocabulary. In the century since, gerrymandering has become more sophisticated. It has also become more extreme and that has led to the kinds of controversies we see today, including disputes over mid-decade redistricting. As I mentioned earlier, the Constitution largely leaves election rules and procedures to the states, but it does not give them unlimited authority. It also provides that, “Congress may at any time by law make or alter such regulations.”

There’s another important reason partisan gerrymandering persists today. In 2019, the Supreme Court held in a case called Rucho v. Common Cause that claims of partisan gerrymandering generally present political questions that the federal courts cannot rule on. While excessive partisanship and redistricting may be undesirable, and I know you feel that the same way I feel that, the court concluded that federal judges are not the ones who should decide how much is too much. So again, Congress has the power to limit or potentially even prohibit certain forms of congressional gerrymandering if it has the political will to act.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Joanne Freeman. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. You can reach me on Twitter or Blue Sky @PreetBharara with the hashtag #AskPreet. You can also call and leave me a message at 833-997-7338. That’s 833-99-PREET, or you can send an email to letters@cafe.com. Stay Tuned is now on Substack. Head to staytuned.substack.com to watch live streams, get updates about new podcast episodes and more. That’s staytuned.substack.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The deputy editor is Celine Rohr. The supervising producer is Jake Kaplan. The lead editorial producer is Jennifer Indig. The associate producer is Claudia Hernández. The audio and video producer is Nat Weiner. The senior audio producer is Matthew Billy and the marketing manager is Liana Greenway. Our music is by Andrew Dost. Special thanks to Torrey Paquette and Adam Harris. I’m your host, Preet Bharara. As always, stay tuned.